The State v Paro Wampa and Five Others [1987] PNGLR 120

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ
• Judgment Date: 15 June 1987
• Court: National Court
• Citation: [1987] PNGLR 120
• Year: 1987
• Judgement Number: N599

Full Title: The State v Paro Wampa and Five Others [1987] PNGLR 120

National Court: Kapi DCJ

Judgment Delivered: 15 June 1987

1 Criminal law—evidence—admissibility of record of interview—where there is a breach of the right under Constitution s42(2)—discretion of the Court

2 CRIMINAL LAW—Evidence—Admissibility of record of interview—Where there is a breach of s42(2) of Constitution—Rights of person "arrested" or "detained"—Loss of "liberty"—Nature of rights—When to be given—Duty of police—Rejection of interview within discretion of court—Constitution, s42(2).

The Constitution, s42(2), provides

"(2) A person who is arrested or detained—

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of the charge against him; and

(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice; and

(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest of his rights under this subsection."

On an application to reject a record of interview on the ground that there had been a breach of s42(2),

Held:

(1) For the purposes of s42(2),

(a) a person is "arrested" when he is charged with an offence and taken into custody;

(b) a person is "detained" when he is taken into police custody in connection with an offence but has not yet been charged with an offence;

(c) a person loses his "liberty" when he is either arrested or detained;

(d) the need to inform a person arrested or detained of his rights under the section arises at the point when he loses his liberty: it is not related to the making of a record of interview;

(e) the right to "communicate without delay" must be given at the same time as the person arrested or detained is informed of his rights under the section;

(f) the right of the person arrested or detained to "communicate" may be exercised or waived but only at the time it is to be given: an offer to so communicate at a later time mis–states the nature of the right;

(g) it is the duty of the police to permit the person arrested or detained who exercises his right to communicate, to do so, "wherever practicable".

(2) There had been a breach of s42(2) where a person was not informed of his rights under s42(2) until three weeks after he was detained when a record of interview was about to be made and at that point he was informed that he had the right to see a relative or friend "now or later".

(3) Whether or not a record of interview should be rejected where there has been a breach of s42(2) is a matter for the discretion of the court, to be exercised on the facts of each case.

Constitutional Reference No 1 of 1977 [1977] PNGLR 362, followed.

(4) In the circumstances the record of interview should be rejected.

Constitutional Reference No 1 of 1977 [1977] PNGLR 362 referred to

Ruling on evidence

In the course of a criminal trial the accused objected to the tender of a record of interview on the ground that it had been obtained in breach of s42(2) of the Constitution.

[Editor's Note: See also The State v Peter Moripi and Gaela Wagisa [1987] PNGLR 376.]

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Kapi DCJ: During the course of the trial of this accused person, the prosecution sought to tender a record of interview which was conducted with the accused Raun Paro. Counsel for Mr Paro objected to the admissibility of the interview on the basis that there was a breach of s42(2) of the Constitution, in that, the accused was not permitted to see his relatives. There is no dispute that the record of interview was made voluntarily. I have been asked to reject the record of interview in the exercise of my discretion on the basis that there was a breach of s42(2) of the Constitution.

In order to determine whether there was a breach of s42(2), it is necessary to construe its meaning. S42(2) of the Constitution is intended to protect every person who is arrested or detained. At the same time, it imposes a duty upon the police in connection with the person arrested or detained to inform him of certain rights and permit him to do certain things.

It is the duty of the police...